Olympic Refining Company v. Carter

• Decision Date: 19 May 1964
• Docket Number: No. 19011.,19011.
• Citation: 332 F.2d 260
• Parties: OLYMPIC REFINING COMPANY, a corporation, Petitioner, v. The Honorable James M. CARTER, Judge of the United States District Court of the Southern District of California, Southern Division, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

332 F.2d 260 (1964)

OLYMPIC REFINING COMPANY, a corporation, Petitioner, v. The Honorable James M. CARTER, Judge of the United States District Court of the Southern District of California, Southern Division, Respondent.

No. 19011.

United States Court of Appeals Ninth Circuit.

May 19, 1964.

Joseph L. Alioto and Maxwell M. Blecher, San Francisco, Cal., for petitioner.

James M. Carter, San Diego, Cal., for respondent.

William H. Orrick, Jr., Asst. Atty. Gen., Robert B. Hummel and Michael I. Miller, Attys., Dept. of Justice, Washington, D. C., for intervenor United States.

William E. Mussman, Francis R. Kirkham, David T. Steffen, Pillsbury, Madison & Sutro, San Francisco, Cal., for intervenor Standard Oil Co. of California.

S. R. Vandivort and C. D. Walz, Jr., Los Angeles, Cal., for intervenor Shell Oil Co.

L. A. Gibbons, D. C. Gregg, and A. A. Hauk, Los Angeles, Cal., for intervenor Union Oil Co. of California.

Harold C. Morton, Los Angeles, Cal., for intervenor Conservation Committee of California Oil Producers.

Edmund D. Buckley, Ralph D. Copley, Jr., Wayne H. Knight, Overton, Lyman & Prince, Los Angeles, Cal., for intervenor Tidewater Oil Co.

George W. Jansen and Miles W. Newby, Jr., Los Angeles, Cal., for intervenor Texaco, Inc.

William J. DeMartini, Los Angeles, Cal., for intervenor Richfield Oil Corp.

P. E. Bermingham, Sims Hamilton, Howard Painter, Los Angeles, Cal., for intervenor Socony Mobil Oil Co., Inc.

Before HAMLEY, KOELSCH and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge:

This proceeding was brought to vacate three protective orders entered in a Government antitrust suit, so that access could be gained to certain documents now withheld from public scrutiny. The district court entered an order denying the motion to vacate the protective orders, and this review was then instituted.

On February 28, 1958, Olympic Refining Company (Olympic) brought a treble-damage antitrust suit, referred to herein as the "Olympic case," against Standard Oil Company of California (Standard), and General Petroleum Corporation (General), in the United States District Court for the Northern District of California.¹ On May 29, 1963, Olympic gave notice in that case that on a specified date in Los Angeles, it would take the pretrial deposition of Stanley E. Disney, an official of the Antitrust Division of the United States Department of Justice.

On June 3, 1963, the clerk of the United States District Court for the Southern District of California, acting upon request of Olympic made pursuant to Rule 45(d) Federal Rules of Civil Procedure, issued a subpoena duces tecum to Disney, requiring him to produce certain described documents at the deposition hearing referred to above. The described materials are copies of documents which the Government filed several years before in a Government antitrust suit entitled United States v. Standard Oil Co. of California, et al. then pending in the United States District Court for the Southern District of California, and referred to herein as the "Government case."²

The documents which Disney was required to produce were described as follows:

(1) Plaintiff\'s (Government\'s) answers, amended answers, and supplemental answers to defendants\' interrogatories and all documents and papers related thereto.

(2) Documents designated "Description of Documentary Materials and Oral Testimony, Lists of Witnesses and Statements of Witnesses" and all amendments and supplements thereto.

(3) Outline of Plaintiff\'s Contentions filed January 10, 1957.

Since all these documents had been filed in the district court in the Government case, Olympic could have examined the filed originals and would not have had to seek copies from a Government official, were it not for the existence of certain protective orders which made it necessary for the clerk of the court to keep the filed originals under seal.

The first of these orders was entered on September 6, 1955, pursuant to a stipulation between the Government and the defendants in the Government case. It provided, in effect, that neither the plaintiff nor the defendants would file any of their respective answers to interrogatories without giving fifteen days' prior notice and that, until filed, such answers would be held in confidence.

The second such order, dated December 17, 1956, was entered in response to the defendants' motion, under Rule 30(b), Federal Rules of Civil Procedure, made after the Government gave notice, pursuant to the order of September 6, 1955, that it intended to file its answers to defendants' interrogatories. This order requires that the filed answers of the Government, "and all other documents and papers related thereto including the document designated `Description of Documentary Material and Oral Testimony,' lists of witnesses, and statements of witnesses * * *" be retained by the clerk as though under seal.

The third protective order, dated June 19, 1959, was one of the two decretal provisions of an order granting the Government's motion that the defendants make prompt delivery to the Government of the original copies of their answers to the interrogatories of the Government. This provision of the order reads:

"It Is Further Ordered that plaintiff shall not publicly disclose said answers to interrogatories except during the course of trial of this case or upon further order of this Court."

Faced with the subpoena duces tecum directed to Disney, the Government, on August 15, 1963, filed a motion in the Government case to vacate the three protective orders referred to above. Olympic intervened, without objection, in support of the Government motion. The motion was opposed by all of the defendants in the Government case. While there was no formal motion to quash the subpoena duces tecum, the propriety of that subpoena was necessarily drawn into question by the motion to vacate the protective orders. Accordingly, during the district court argument on the Government motion to vacate, all parties proceeded on the assumption that the court could make any order with reference to the subpoena which would be appropriate in view of the disposition of the motion to vacate.³

Following the argument, the district court on November 12, 1963, entered an order, supported by findings of fact and conclusions of law, denying the motion to vacate the protective orders and quashing the subpoena duces tecum directed to Disney. On November 21, 1963, Olympic moved in this court for leave to file a petition for a writ of mandamus directed to the district judge who had entered the order of November 12, 1963. The specific relief sought was an order directing the district judge to vacate the three protective orders or, in the alternative to vacate the order of November 12, 1963, insofar as that order quashes the subpoena duces tecum.

We granted the motion for leave to file the petition, called for a return thereto, and granted all parties in the Olympic case and the Government case leave to intervene in the mandamus proceeding. All did intervene, the Government in favor of Olympic and all others in opposition.

The respondent judge and the intervening oil companies joined in their presentation to this court and will be collectively referred to as respondents. At the outset they question the jurisdiction of this court to entertain this review proceeding. It is their contention that since the protective orders, and the order of November 12, 1963, were entered in a Government antitrust suit, they are reviewable, if at all, only by the Supreme Court of the United States. Section 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 62 Stat. 989 (1948), 15 U.S. C. § 29 (1958), quoted in the margin, is cited as authority for this view.⁴

It has been held that, under this statute, proceedings to review a district court order entered in such a suit, whether final or interlocutory, must ordinarily be had in the Supreme Court.⁵ An exception, however, is made where the order sought to be reviewed is of an ancillary character disposing of a controversy between private parties outside the main stream of the litigation in which the Government is directly concerned. See Shenandoah Valley Broadcasting, Inc. v. American Society of Composers, Authors & Publishers, 375 U.S. 39, 84 S.Ct. 8, 11 L.Ed. 2d 8, modified 375 U.S. 994, 84 S.Ct. 627, 11 L.Ed.2d 467.

In our opinion, the order of November 12, 1963, is of an ancillary character as so defined, and is therefore subject to review in this court. That order, dealing with the question of whether protective orders entered years ago in a Government antitrust suit which was terminated in 1961, disposes of a controversy outside of the main stream of the litigation in the Government case. It is essentially a controversy between private parties in which the Government is not directly concerned, for although the Government made the motion to vacate the protective orders, it did so in aid of Olympic's effort to obtain access to documents which the oil companies do not wish to have released.

We need not decide whether the order sought to be reviewed is final and therefore appealable (see Shenandoah, supra), in which event the motion for leave to file a petition for a writ of mandamus could be regarded as a timely notice of appeal. For if not appealable as a final order, mandamus is a proper remedy (see Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368), and in the exercise of our discretion we would entertain the petition. See American Concrete Agricultural Pipe Ass'n v. No-Joint Concrete Pipe Co., 9 Cir., 706 F.2d 331.

The motion to dismiss the review proceeding for want of jurisdiction in this court is denied.

In seeking reversal of the district court order of November 12, 1963, Olympic and the Government question the initial validity of the three protective orders which the district court declined to vacate. However, we do not regard the question of whether the protective orders were valid...